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SUPPRAMANIAM et al v. SYMONS et al.
NLR18V229
Present : Wood
Renton C.J. and Ennis J. 1915.
SUPPRAMANIAM et al. v. SYMONS et al.
38-D. C. (Inty.) Colombo, 1,477.
Order of abatement-Power of Court to make order ex mero motu.
A Court has power under section 402 of the Civil Procedure Code to make an order
of abatement ex mero motu.
It is, however, desirable that a Court, before making an order of abatement,
should notice the parties, as far as it conveniently can, to give them an
opportunity of showing cause against the order.
If the plaintiff is injured by absence of notice he can proceed under section
403.
WOOD RENTON C.J.-People may do what they like with their disputes as long as
they do not invoke the assistance of the courts of law. But whenever that step
has been taken they are bound to proceed with all possible and reasonable
expedition, and it is the duty of their legal advisers and of the Courts
themselves to see that this is done. The work of the Courts must be conducted on
ordinary business principles, and no Judge is obliged, or is entitled, to allow
the accumulation upon his cause list of a mass of inanimate or semi-animate
actions.
THE
facts are set out in the judgment.
Bawa, K.C., and Drieberg, for the appellants.
Elliott and Samarawickreme, for
the respondents.
Cur. adv. vult.
May 27, 1915. WOOD RENTON C.J.-
This is an appeal against an order by the District Judge of Colombo refusing to
set aside an order made by one of his predecessors on November 5, 1896, under
section 402 of the Civil Procedure Code, for the abatement of the action on the
ground that a period exceeding twelve months had then elapsed without the
plaintiffs having taken the further necessary steps for its prosecution. The
action, which is one on a mortgage bond for the recovery of the sum of Rs.
51,000, was instituted as far back as March 25, 1889. I do not propose to trace
its progress from that date up to the date of the order of abatement further
than to say that it clearly results from the record that on August 14, 1893, it
was, with the knowledge and consent of all parties, struck off the roll with a
view to settlement. After the order of abatement nothing was done till March 13,
1911, when the present proctors moved to have the order of abatement set aside.
It was not till
February 10 in this year that the District Court found itself in a
position to give a decision on that motion. The learned District
Judge held that the order of abatement ought not to have been
made, but that the plaintiffs had not complied with the conditions
prescribed by section 403 of the Civil Procedure Code, under which
an order of abatement can be set aside, inasmuch as they had
not made their application within a reasonable time, and had not
proved that they had been prevented by any sufficient cause from
continuing the action. He further held that, apart from section
403, which was not applicable, he had no power to vacate his
predecessor's order.
I agree with the learned District Judge in the result at which he arrived,
namely, that the plaintiffs' motion must be dismissed. But I rest my decision
upon different grounds. The journal entries clearly show that there had been
prior postponements on the application of both sides with a view to a
settlement of the litigation. These postponements were for a fixed period, and
there can be no doubt that the order of November 5, 1896, should have been
similar in this respect to those that preceded it. The parties were, however,
fully aware of what the Court had done. In the case of at least one of the
previous postponements, the plaintiffs' proctor himself moved the Court that the
action, which had been struck off the roll in the hope of a settlement being
reached, should be restored to it, and the case of Marikar v. Bawa Lebbe,1[(1892) 1 S. C. R. 240.]
which is a decision of two Judges, shows that in such circumstances it is the
duty of the plaintiff to move that the
